[nfbmi-talk] legal breif understanding the issue from pdf

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Just what I needed!

Marcus
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Subject: [nfbmi-talk] legal breif understanding the issue from pdf




UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT

 DEANNA L. JONES, )

)

 Plaintiff, )

)

 v. ) Civil Action No.: 5:11-cv-174

)

NATIONAL CONFERENCE OF )

BAR EXAMINERS AND ACT, INC., )

 )

 Defendants. )

  STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

 Introduction

 The U.S. Department of Justice enforces, regulates, and provides technical
assistance

regarding the Americans with Disabilities Act, 42 U.S.C. § 12101-12213; 28
C.F.R. pt. 36

(“ADA”), including the application of Title III of the ADA to entities
offering licensing

examinations.1 The United States files this Statement of Interest, pursuant
to 28 U.S.C. § 517,2 because this litigation implicates the proper
interpretation and application of Title III of the

ADA. 1 See 42 U.S.C. § 12186(b) (requiring the Attorney General to issue
regulations for Title III of the ADA); 42 U.S.C.

§ 12188(b) (providing for enforcement of Title III of the ADA by the
Attorney General); 42 U.S.C. § 12206

(authorizing Attorney General to issue technical assistance under Title
III).

2 Title 28 U.S.C. § 517 states “[t]he Solicitor General, or any officer of
the Department of Justice, may be sent by

the Attorney General to any State or district in the United States to attend
to the interests of the United States in a

suit pending in a court of the United States, or in a court of a State, or
to attend to any other interest of the United

States.”

Under the ADA, professional licensing examinations must be administered in a
manner

that is accessible to persons with disabilities. 42 U.S.C § 12189. To ensure
accessibility, entities offering licensing examinations are required to
offer “modifications” to an examination or to

provide appropriate “auxiliary aids” if needed so as to best ensure that the
examination measures

an individual with a disability’s aptitude and achievement rather than the
individual’s disability.

See 28 C.F.R. § 36.309(b)(1-3). Under this statutory and regulatory
framework, Plaintiff,

Deanna L. Jones, has moved for a preliminary injunction requiring National
Conference of Bar

Examiners (“NCBE”) and ACT, Inc. (collectively, the “Defendants”) to allow
her to use

computer and screen reading software while taking the Multistate
Professional Responsibility

Exam (“MPRE”), along with other test modifications and
accommodations.offering licensing examinations are required to offer
“modifications” to an examination or to

provide appropriate “auxiliary aids” if needed so as to best ensure that the
examination measures

an individual with a disability’s aptitude and achievement rather than the
individual’s disability.

See 28 C.F.R. § 36.309(b)(1-3). Under this statutory and regulatory
framework, Plaintiff,

Deanna L. Jones, has moved for a preliminary injunction requiring National
Conference of Bar

Examiners (“NCBE”) and ACT, Inc. (collectively, the “Defendants”) to allow
her to use

computer and screen reading software while taking the Multistate
Professional Responsibility

Exam (“MPRE”), along with other test modifications and
accommodations.offering licensing examinations are required to offer
“modifications” to an examination or to

provide appropriate “auxiliary aids” if needed so as to best ensure that the
examination measures

an individual with a disability’s aptitude and achievement rather than the
individual’s disability.

See 28 C.F.R. § 36.309(b)(1-3). Under this statutory and regulatory
framework, Plaintiff,

Deanna L. Jones, has moved for a preliminary injunction requiring National
Conference of Bar

Examiners (“NCBE”) and ACT, Inc. (collectively, the “Defendants”) to allow
her to use

computer and screen reading software while taking the Multistate
Professional Responsibility

Exam (“MPRE”), along with other test modifications and accommodations.3 As
explained above, § 12189 and 28 C.F.R. § 36.309 require modifications and
auxiliary aids to ensure

accessibility. Hereinafter, we refer to such modifications and auxiliary
aids as “testing accommodations” or

“accommodations.”

4 Because of the parties’ stipulation to dismiss ACT, Inc. as a defendant
(Docket No. 16), the United States focuses

this Statement of Interest on positions taken by NCBE.

In NCBE’s motion in limine in this case, (Docket No. 25, p. 2-4), NCBE has
argued for a

“reasonableness” standard when evaluating the accommodations offered to
visually impaired

plaintiffs seeking to take bar examinations.4 The United States does not
agree that the testing

accommodations offered to Plaintiff by NCBE should be analyzed under a
“reasonableness”

standard. See NCBE’s Motion in Limine (Docket No. 25), p. 2-4 (citing Fink
and Jaramillo). A

reasonableness analysis ignores the plain language of the controlling
statute and regulation. The

Court should evaluate whether NCBE here is offering appropriate auxiliary
aids to “best ensure”

that the MPRE measures Plaintiff’s knowledge and abilities and not her
disabilities. Therefore,

the United States urges the Court to analyze Plaintiff’s Motion for
Preliminary Injunction and the

overall substantive merits of this case under the “best ensure” standard
established by the Title

III regulation and correctly applied by the Ninth Circuit in Enyart v.
National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir. 2011) and,
most recently, by the District Court for the

District of Columbia in Bonnette v. District of Columbia Court of Appeals,
No. 11–1053 (CKK),

2011 WL 2714896 (D.D.C. July 13, 2011). Statutory and Regulatory Background

Congress enacted the ADA in 1990 “to provide a clear and comprehensive
national

mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C.

§12101(b)(1). In enacting the ADA, Congress found that “discrimination
against individuals

with disabilities persists in such critical areas as employment . . .
education . . . [and]

communication” and further found that, “the continuing existence of unfair
and unnecessary

discrimination and prejudice denies people with disabilities the opportunity
to compete on an

equal basis and to pursue those opportunities for which our free society is
justifiably famous, and

costs the United States billions of dollars in unnecessary expenses
resulting from dependency

and nonproductivity.” 42 U.S.C. §§ 12101(a)(3), (a)(8). Congress required
the Attorney

General and the Department of Justice to issue regulations implementing the
ADA and expected

that the interpretation of the ADA and requirements to eliminate
discrimination against persons

with disabilities would evolve over time with the advent of new technology.
“The types of

accommodations and services provided to individuals with disabilities, under
all of the titles of

this bill, should keep pace with the rapidly changing technology of the
times.” H.R. Rep. No.

101-485(II), at 108 (1990). Consistent with this approach, the Department of
Justice made clear

in the preamble for the Title III regulation that appropriate auxiliary aids
should keep pace with

emerging technology. See 28 C.F.R. pt. 36, app. C (2011) (auxiliary aids and
services).

Section 309 of the ADA provides, “[a]ny person that offers examinations or
courses related to

applications, licensing, certification, or credentialing for secondary or
post-secondary education,

professional, or trade purposes shall offer such examinations or courses in
a place and manner

accessible to persons with disabilities or offer alternative accessible
arrangements for such

individuals.” 42 U.S.C. § 12189. The legislative history of Section 309
explains that “this

provision was adopted in order to assure that persons with disabilities are
not foreclosed from

educational, professional, or trade opportunities because an examination or
course is conducted

in an inaccessible site or without an accommodation.” H.R. Rep. No. 101-485
(III), at 68-69

(1990). Following notice and comment rulemaking, the Attorney General
promulgated 28

C.F.R. § 36.309 to implement Section 309 of the statute. That regulation
provides that private

entities offering examinations must select and administer these examinations
so that they “best

ensure that, when the examination is administered to an individual with a
disability that impairs

sensory, manual, or speaking skills, the examination results accurately
reflect the individual's

aptitude or achievement level or whatever other factor the examination
purports to measure,

rather than reflecting the individual's impaired sensory, manual, or
speaking skills (except where

those skills are the factors that the examination purports to measure).” 28
C.F.R. §

36.309(b)(1)(i).5 The regulation goes on to state that “[r]equired
modifications to an 5 The requirement that the examination must “best
 ensure” fair examination of the test-taker’s knowledge was

adopted from the Department of Education’s Rehabilitation Act Section 504
requirements for admissions

examinations in post-secondary institutions. 28 C.F.R. pt. 36, app. B at 715
(2009) (referring to 34 C.F.R. §

104.42(b)(3)). Title I of the ADA includes similar language in the context
of tests required for employment.

Section 12112(b)(7) of Title I requires “select[ing] and administer[ing]
tests concerning employment in the most

effective manner to ensure . . .” that the test reflects the disabled job
applicants’ or employees’ aptitude and not their

disabilities. Therefore, in the context of examinations, the Department of
Education’s Rehabilitation Act regulations

and the regulations informing Titles I and III of the ADA all include some
variation of the “best ensure” standard

and not a reasonableness standard.

 examination may include changes in the length of time permitted for
completion of the

examination and adaptation of the manner in which the examination is given.”
28 C.F.R. §

36.309(b)(2). The regulation further provides that private testing entities
shall provide

appropriate auxiliary aids “unless that private entity can demonstrate that
offering a particular

auxiliary aid would fundamentally alter the measurement of the skills or
knowledge the

examination is intended to test or would result in an undue burden.” 28
C.F.R. § 36.309(b)(3).

Section 36.309, its “best ensure” standard, and the analyses contained in
Enyart and Bonnette

should control the outcome of this case. Factual Background6 6 The United
States has not developed an independent factual record in this matter and,
for purposes of this

Statement of Interest, assumes the facts alleged in Plaintiff’s Complaint to
be true.

Plaintiff Deanna Jones is a law student at Vermont Law School with
significant visual

disabilities. (Compl. ¶ 11.) The Vermont Board of Bar Examiners requires
applicants for

admission to the bar to submit a passing score on the Multistate
Professional Responsibility

Exam. (Compl. ¶ 2.) Jones plans to take the Multistate Professional
Responsibility Examination

in August 2011. (Compl. ¶ 11.) NCBE develops and owns the MPRE and
determines the

formats in which the MPRE is offered. NCBE has contracted with ACT, Inc. to
administer the

MPRE in Vermont. (Compl. ¶ 12.)

Since 2003 and throughout law school Jones has used the screen access
software

Kurzweil 3000 and Zoomtext in combination to perform all academic and
complex reading tasks.

(Compl. ¶¶ 3, 16.) Without the use of this adaptive software, Jones alleges
that she is unable to

read in a manner comparable to other individuals and alleges that she will
be unable to compete

on an equal basis with other test takers. (Compl. ¶¶ 3, 6, 7.)

Jones submitted a request for accommodations, including the use of adaptive
software, to

ACT, Inc. on June 17, 2011. (Compl. ¶ 22.) In addition, counsel for Jones
contacted NCBE’s

counsel to determine whether NCBE would conduct an individualized inquiry as
to Jones’

request. (Compl. ¶ 23.) NCBE’s counsel responded by informing Jones’ counsel
that NCBE

would not make an individualized inquiry as to Jones’ request and that ACT,
Inc. would decide

Jones’ request for accommodation. (Compl. ¶ 23.) ACT Inc. responded to Jones’
request for

accommodation with a list of accommodations it would be willing to provide.
(Compl. ¶ 24.)

Specifically, ACT Inc.’s representative stated in an email that ACT, Inc.
“approved your request

for extended time (triple), a single room, a transcriber, stop-the-clock
breaks (2 at 15 minutes

each), a magnifying glass and food/drink during the exam on the basis of a
visual impairment

and a learning disability.” (Email of Susan Piper, ACT, Inc. Consultant,
attached as Exhibit B to

Declaration of Michelle B. Patton, Esq. and filed on July 1, 2011, Docket
No. 2-2.) ACT, Inc.’s

proposed accommodations did not include taking the MPRE on a computer
equipped with the

screen access software Kurzweil 3000 and Zoomtext, and therefore, according
to Plaintiff’s

allegations, did not address Jones’ disabilities to best ensure that her
test results would reflect

that which the test is designed to measure. (Compl. ¶ 24, 25.)

Argument

A. The Court Should Apply the “Best Ensure” Standard, Not the

“Reasonableness” Standard Advocated by the Defendants.

 When a court “reviews an agency’s construction of the statute which it
administers, it is

confronted with two questions.” Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S.

837, 842 (1984)). First, the court must determine whether the statute is
“clear and unambiguous”

(“Step 1”). Chevron, 467 U.S. at 842; Kruse v. Wells Fargo Home Mortgage,
Inc., 383 F.3d 49, 55 (2d Cir. 2004). “If the intent of Congress is clear,
that is the end of the matter; for the court,

as well as the agency, must give effect to the unambiguously expressed
intent of Congress.”

Chevron, 467 U.S. at 842-43.  If, however, the provisions of the statute are
unclear or ambiguous, then the court must

decide whether “the agency’s answer is based upon a permissible construction
of the statute”

(“Step 2”). Chevron, 467 U.S. at 843; see also Kruse, 383 F. 3d at 55
(same). Where Congress

has made an “express delegation of authority to the agency to elucidate a
specific provision of

the statute by regulation,” such regulations are given “controlling weight
unless they are

arbitrary, capricious, or manifestly contrary to statute.” Chevron, 467 U.S.
at 844. Because

Congress expressly directed the Attorney General to promulgate regulations
for Title III of the

ADA, the Department’s regulations and interpretation thereof are entitled to
substantial

deference. See Enyart v. Nat’l Conf. of Bar Exam., Inc., 630 F.3d 1153,
1160-61 (9th Cir. 2011)

(affording Attorney General’s ADA regulations deference under Chevron U.S.A.
Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) in granting preliminary
injunction to blind

law student seeking to use screen reader during Multistate Bar Exam); Auer
v. Robbins, 519 U.S.

452, 461 (1977) (agency’s interpretation of its regulations “controlling
unless plainly erroneous

or inconsistent with the regulation”).

 With this analytical framework in mind, Defendant’s argument (Docket No.
25, p. 2-4)

that Plaintiff’s Motion for a Preliminary Injunction should be denied
because the testing

accommodations NCBE and ACT, Inc. offered to Jones are reasonable as a
matter of law should

be rejected. Defendant’s proposed reasonableness analysis for testing
accommodations subject

to the requirements of Section 309 of the ADA impermissibly imports broader,
inapplicable ADA principles and ignores the proper standard for determining
whether the examination is

offered in an accessible manner. The term “reasonable accommodations” –
explicit in Title I –

does not appear in the Title III statutory and regulatory provisions at
issue in this case.

Defendant NCBE argues here that case law and guidance interpreting the ADA’s
“reasonable

accommodation” requirement under Title I of the ADA – the statute’s
employment provisions -- 

should control the court’s analysis of testing accommodations under Title
III. NCBE is wrong.

On the contrary, the controlling provisions, 42 U.S.C. § 12189 and 28 C.F.R.
§ 36.309, which

govern the conduct of entities offering licensing examinations -- require
NCBE to offer testing

accommodations to best ensure that Plaintiff’s aptitude or achievement level
are reflected in the

test results.  Section 36.309(b) requires that an examination be offered in
a manner that provides

individuals with disabilities an equal opportunity to demonstrate their
knowledge or abilities to

the same degree as others taking the MPRE. See 28 C.F.R. pt. 36, app. C
(2011) (examinations

and courses). Enyart v. Nat’l Conference of Bar Exam’rs, 630 F.3d 1153, 1163
(9th Cir 2011);

Bonnette v. Dist. of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL
2714896, *19

(D.D.C. July 13, 2011). The regulation further articulates the requirement
that a Title III testing

entity must modify the manner in which the examination is given, or provide
appropriate

auxiliary aids “unless doing so would fundamentally alter the skills or
knowledge the

examination is intended to test or would result in an undue burden.” 28
C.F.R. § 36.309(b)(2),

(3).

 Congress intended that the ADA give people with disabilities an equal
opportunity to

obtain professional or trade licenses and certifications without their
disabilities impeding their opportunity to demonstrate their abilities. When
a test contains barriers that have nothing to do

with the aptitudes or achievements it purports to measure, it violates this
principle and denies

individuals with disabilities the opportunity to practice trades and
professions that require no

more skill or ability than they in fact have. The standard contained in the
regulations

implementing Section 309 ensures that people with disabilities have access
to high stakes

licensing examinations and associated employment opportunities and thereby
helps to realize a

significant part of the ADA’s promise. B. The Ninth Circuit Court of
Appeals, affirming the District Court for the

Northern District of California, and the District Court for the District of
Columbia

Have Rejected Defendants’ Analysis of Their Obligations When Offering
Licensing

Examinations.

 The suggestion that offered accommodations are reasonable as a matter of
law under §

309 of the ADA has been rejected in several recent cases and should be
rejected here. In Enyart

v. National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir 2011), and
in Bonnette v.

District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011 WL 2714896
(D.D.C. July

13, 2011), the Ninth Circuit Court of Appeals and the District Court for the
District of Columbia,

confronted largely the same issues present here. In each case, the courts
rejected defendant’s

reasonable accommodation standard and adopted the Department of Justice’s
interpretation of its

statute and regulations.7 7 Following the Ninth Circuit’s Enyart decision,
the District Court for the Northern District of California, in an

extremely similar factual scenario to Jones’ case, also rejected NCBE’s
arguments regarding the statutory and

regulatory framework for provision of licensing examinations. Elder v.
National Conference of Bar Examiners, No.

C 11-00199 SI, 2011 WL 672662 (N.D. Cal. Feb. 16, 2011). In an earlier case
involving Timothy Elder as one of

the plaintiffs arguing for many of the same accommodations as Ms. Enyart and
Jones when taking the Multistate Bar

Examination, the District Court for the District of Maryland explained the
need for a more complete factual record

when rendering an oral opinion and issued a one page order denying
plaintiffs’ motion for a preliminary injunction

and also denying NCBE’s motion to dismiss. Elder v. National Conference of
Bar Examiners, No. 1:10-cv-01418-

JFM, Docket No. 49 (D. Md. July 13, 2010). The Elder case in the District of
Maryland was later dismissed without

prejudice on mootness grounds because all three plaintiffs passed the
Multistate Bar Examination as part of the

Maryland bar examination. Id., Docket No. 57 (D. Md. November 29, 2010). The
Department of Justice is not

aware of any other cases addressing the statutory and regulatory framework
for entities offering licensing

examinations other than Enyart and Elder in the courts of the Ninth Circuit,
Elder in the District of Maryland, and

Bonnette in the District Court for the District of Columbia. Defendants in
Enyart have filed a petition for certiorari

that has not been ruled on as of this filing.

 1. Enyart v. National Conference of Bar Examiners, 630 F.3d 1153 (9th Cir
2011).

 Enyart involved a legally blind applicant to the bar of California, who
requested a series

of testing accommodations from NCBE and ACT, Inc. when taking the Multistate
Bar

Examination and the MPRE. As in Jones’ case, the defendants in Enyart did
not agree to allow

Ms. Enyart to use a laptop equipped with assistive screen-reader software
and screen

magnification software. Addressing the standard to be applied to the
plaintiff’s testing

accommodation request, the Ninth Circuit rejected the argument that § 12189
requires only

“reasonable accommodation.” Enyart, 630 F.3d at 1161-63. Instead, the Ninth
Circuit applied

the standard set out in the Department of Justice’s examinations regulations
that testing

accommodations must be offered to “best ensure” the examination results
accurately reflect

applicants’ aptitudes rather than disabilities. Id.

 In granting deference to the Department of Justice’s “best ensure”
standard, the Ninth

Circuit explained that “Congress did not incorporate 45 C.F.R. 84.12’s
“reasonable

accommodation” standard into § 12189. Id. at 1162 (emphasis in original). To
the contrary,

Enyart holds that a requirement that testing entities “must provide disabled
people with an equal

opportunity to demonstrate their knowledge or abilities to the same degree
as nondisabled people

taking the exam—in other words, the entities must administer the exam ‘so as
to best ensure’ that

exam results accurately reflect aptitude rather than disabilities” is a
“reasonable reading of §

12189’s requirement that entities make licensing exams ‘accessible.’” Id.
2. Bonnette v. District of Columbia Court of Appeals, No. 11–1053 (CKK),
2011

WL 2714896 (D.D.C. July 13, 2011).

  Cathyrn Bonnette is a legally blind individual who requested testing
accommodations

when taking an examination offered by the National Conference of Bar
Examiners. Bonnette

made her requests as she prepared to sit for the July 2011 District of
Columbia Bar Examination.

Bonnette v. District of Columbia Court of Appeals, No. 11–1053 (CKK), 2011
WL 2714896, at

*6 (D.D.C. July 13, 2011). Bonnette’s requests for testing accommodations,
like those of

Deanna Jones, included a request to use a screen-reading program installed
on a laptop computer.

Id. Ultimately, NCBE rejected Bonnette’s request to use this screen-reading
software. Id. at *8.

In response, Bonnette filed suit and moved for a preliminary injunction.

 On July 13, 2011, the District Court for the District of Columbia granted
the preliminary

injunction. The Bonnette Court, like the Ninth Circuit in Enyart, squarely
rejected defendants’

view that a visually impaired plaintiff’s requests for testing
accommodations should be evaluated

under a “reasonable accommodation” standard. With respect to NCBE and other
private entities

(such as ACT, Inc.), the court explained that it “must defer to the Justice
Department’s regulation

interpreting the requirements of § 12189.” Id. at *15 (citations omitted).

 The Bonnette Court also rejected defendants’ reliance on inapposite case
law such as

Fink v. N.Y. City Department of Personnel, 855 F. Supp. 68 (S.D.N.Y. 1994)
and Jaramillo v.

Professional Examination Service., Inc., 544 F. Supp. 2d 126 (D. Conn.
2008), which are both

relied upon by NCBE in its motion in limine (Docket No. 25, p. 2-4) in this
matter. As Bonnette

explains, “the plaintiffs in both Fink and Jaramillo brought claims under
Section 504 of the

Vocational Rehabilitation Act, 29 U.S.C. § 794(a), which explicitly embraced
a “reasonable accommodation” standard through its implementing regulations.”
Bonnette, 2011 WL 2714896,

at *16. The Bonnette court explained that Congress adopted this reasonable
accommodation

standard in Title I of the ADA, which addresses employers. But, “Congress
did not incorporate

this standard into § 12189.” Id. The court noted that although covered
entities must make

“reasonable modifications to policies, practices, and procedures, this
general standard does not

override the more specific regulatory guidance relating to the testing
context.” Id. The court

explained that in the testing context, “it is essential that the content of
the questions and the

answer choices be communicated to the examinee in a clear and efficient
manner so that the

examinee can carefully evaluate the choices and select an answer within the
time allotted for the

examination.” Id.  Finally, the United States urges this Court to apply the
“best ensure” standard without

allowing the application of the correct standard to be affected by lesser
accommodations

provided to Plaintiff in the past. As explained by the Bonnette Court,
“[t]he fact that [Plaintiff]

could take the [test] using a human reader does not mean that this
accommodation would best

ensure that her score reflected her achievement level rather than her visual
impairment;

[Plaintiff] is entitled to an auxiliary aid that allows her to perform at
her achievement level, not

just one that might be good enough for her to pass.” Id. at *19 (emphasis in
original).

Conclusion

The clear weight of authority and the correct interpretation of the
statutory and regulatory

framework governing entities offering licensing examinations requires NCBE
to offer Deanna

Jones testing accommodations that “best ensure” that the MPRE reflects her
abilities and not her

impairments. This Court should reject arguments to the contrary. Dated at
Burlington, in the District of Vermont, this 20th day of July, 2011.
Respectfully submitted,

  UNITED STATES OF AMERICA

  THOMAS E. PEREZ

 Assistant Attorney General

 Civil Rights Division

  TRISTRAM J. COFFIN

 United States Attorney

 District of Vermont

  By: /s/ Nikolas P. Kerest

 NIKOLAS P. KEREST

 Assistant U.S. Attorney

 District of Vermont

 P.O. Box 570

 Burlington, VT 05402-0570

 (802) 951-6725

Nikolas.Kerest at usdoj.gov   CERTIFICATE OF SERVICE  I, Diane Barcomb, Legal
Assistant for the United States Attorney’s Office for the District

of Vermont, do hereby certify that on July 20, 2011 I filed the STATEMENT OF
INTEREST

OF THE UNITED STATES OF AMERICA REGARDING PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION with the Clerk of the Court. The CM/ECF system will

provide service of such filing via Notice of Electronic Filing (NEF) to the
following NEF parties:

  Trevor Coe, Esq.

 Timothy R. Elder, Esq.

 Daniel F. Goldstein, Esq.

 Robert B. Hemley, Esq.

 Emily J. Joselson, Esq.

 Karen McAndrew, Esq.

 And I also caused to be served by U.S. Postal Service, the following
non-NEF parties:

  Robert A. Burgoyne, Esq.

 Fulbright & Jaworski L.L.P.

 801 Pennsylvania Avenue, NW

 Washington, DC 20004

  Caroline M. Mew, Esq.

 Fulbright & Jaworski L.L.P.

 801 Pennsylvania Avenue, NW

 Washington, DC 20004

  Michele B. Patton, Esq.

 Langrock Sperry & Wool, LLP

 111 South Pleasant Street

 P.O. Drawer 351

 Middlebury, VT 05753-0351

  Dated at Burlington, in the District of Vermont, this 20th day of July,
2011.

  /s/ Diane Barcomb

 DIANE BARCOMB

 Legal Assistant


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